Summary

Effective management of ill or injured employees often involves difficult decisions about the health and safety of the employee concerned, as well as balancing the needs of the business and the interests of other employees.

It can be difficult to manage these issues effectively without falling foul of adverse action and anti-discrimination legislation, as the Office of Public Prosecutions recently discovered when the Federal Circuit Court found it had unlawfully discriminated against a lawyer by dismissing him for misconduct which was found to have been caused by his medical condition.1

The Federal Circuit Court of Australia ordered that the Office of Public Prosecutions pay the lawyer more than $100,000 in compensation and penalties, and reinstate him..

Background

Mr Grant is a lawyer who commenced employment with the Victorian Office of Public Prosecutions (OPP) in 2007.

Mr Grant performed his role satisfactorily until late 2010, when he was diagnosed with Deep Vein Thrombosis requiring extensive treatment and ongoing blood tests. On returning to work after a period of personal leave, Mr Grant's performance deteriorated and he began to behave erratically in connection with work.

This led the OPP to raise with him its serious concerns about his performance, including his frequent absences from work without notice. Mr Grant disclosed that he had been suffering from depression and anxiety, and had problems with alcohol abuse.

Mr Grant's performance issues continued, which led the OPP to direct him to provide a medical report detailing his condition and his prognosis. The report stated that Mr Grant suffered from a long term anxiety condition, which was complicated by bouts of depression and the fact that Mr Grant was self-medicating with alcohol. The report also stated that Mr Grant was starting to respond to treatment, and that his prognosis was excellent.

Notwithstanding this prognosis, the OPP informed Mr Grant that his condition rendered him unfit to perform his role as a lawyer, and directed him not to return to work until he had medical clearance to do so. Mr Grant subsequently provided the OPP with a medical certificate which included a return to work date, but was directed to remain absent from work until further notice. Mr Grant was also directed to undergo an independent medical assessment. Mr Grant was subsequently dismissed for serious misconduct.

Mr Grant brought a claim against the OPP under the general protections provisions of the Fair Work Act 2009 (Cth) (FW Act), alleging that the OPP had taken adverse action against him, in terminating his employment, because of his medical condition. The OPP denied that Mr Grant's ill-health played any part in its decision to dismiss him, asserting that the reason for the termination was his misconduct.

Federal Circuit Court says don't ignore doctor's orders!

Judge Burchardt of the Federal Circuit Court did not accept the OPP's evidence that it did not take Mr Grant's illness into account in deciding to terminate his employment, and found that it had contravened the general protections provisions of the FW Act.

The Court found that the misconduct leading to the OPP's decision to terminate Mr Grant's employment was a clear manifestation of his mental illness, of which the OPP was aware. As the misconduct was caused by Mr Grant's depressive condition, the Court considered that that his condition was at least part of the reason for the termination of his employment.

The Court concluded that the course of action that led to Mr Grant's dismissal was "fundamentally flawed" and "ignored the ill health of which the [OPP] had active knowledge", including the medical advice provided by Mr Grant's treating doctor.

The result:compensation, a penalty and reinstatement

The Court was of the view that trust and confidence necessary to the employment relationship had not completely broken down, and there was no suggestion that Mr Grant's supervisors would struggle to deal with him if he were reinstated.

The Court found that Mr Grant would suffer difficulties in trying to obtain employment elsewhere because of the circumstances that surrounded his termination. It ordered that Mr Grant be reinstated in his former position, or in some equivalent position, within the OPP or another branch of the Victorian Public Service.

In calculating Mr Grant's damages, the Court took into account his failure to properly mitigate his loss, such as through seeking alternative employment. It therefore discounted his loss of earnings by 25%, awarding him damages of $93,750. It is worth noting that the Court declined to order any compensation for injury to feelings and the like.

The Court also imposed a penalty of $10,000 (approximately one-third of the total available) on the OPP for contravening the FW Act.]

Bottom line for employers

Employers should be aware that the definition of 'disability' under the Disability Discrimination Act 1992 (Cth) includes behaviour which is a symptom or manifestation of the disability.

In circumstances where an employee's misconduct or poor performance may be a symptom of a medical condition, discriminating or taking adverse action against the employee because of his or her misconduct or poor performance will be unlawful unless an exception under discrimination or adverse action laws applies.

It is critical that employers faced with situations where an employee's performance or conduct is directly linked to their medical condition take great care to avoid unlawfully discriminating or taking adverse action against the employee.

This particular case also makes it clear that employers should not disregard a medical assessment provided by the employee's treating doctor.